## Facts

- Aisha B. Patrick sued Iberia Bank for malicious prosecution after she was arrested and charged with attempted theft when she tried to cash a check drawn on her deceased mother’s bank account.
- Iberia Bank supported its summary-judgment motion with Rosemary Patrick’s death certificate, an affidavit from teller Kathey Simmons, and the transcript of Aisha Patrick’s deposition.
- The materials showed Rosemary Patrick opened checking and savings accounts on September 8, 2001, and she was the only authorized person on those accounts.
- Rosemary Patrick died on January 8, 2002.
- On January 9, 2002, Aisha Patrick presented a $1,885 check payable to her, drawn on Rosemary Patrick’s checking account, dated January 9, 2002, and signed in Rosemary Patrick’s name.
- Simmons stated the bank received telephone requests to transfer money from the savings account to the checking account on January 2, 8, and 9, 2002.
- After the third transfer request, another bank employee told Simmons the caller sounded younger than a 63-year-old woman (Rosemary Patrick’s age).
- Simmons then called the hospital and was told by a medical-records representative that Rosemary Patrick had died on January 8.
- In her deposition, Aisha Patrick testified her mother signed the check and completed everything except the date before she died; Aisha Patrick filled in the date and went to the bank on January 9 to cash it.
- Bank employees contacted law enforcement when Patrick attempted to negotiate the check; Patrick was arrested and charged.
- The trial court granted summary judgment for Iberia Bank, finding Patrick could not prove the absence of probable cause—an essential element of malicious prosecution.
- On appeal, Patrick argued (among other points) that Simmons’s affidavit should not have been considered because parts were not based on Simmons’s personal knowledge and included hearsay.

## Issues

1. Whether Iberia Bank was entitled to summary judgment because Patrick lacked factual support to prove the “absence of probable cause” element required for malicious prosecution.
2. Whether the trial court erred under La. C.C.P. art. 967 by considering Simmons’s affidavit despite Patrick’s objections that certain statements were hearsay and not within Simmons’s personal knowledge.
3. Whether any dispute about Patrick’s intent or the bank employees’ alleged malice created a genuine issue of material fact when the record otherwise showed probable cause.

## Decision

- The court of appeal affirmed summary judgment for Iberia Bank.
- It held the record evidence established probable cause for the bank to contact law enforcement about a check presented the day after the account holder’s death, signed with the deceased’s name, and connected to suspicious account-transfer activity.
- It concluded Patrick failed to produce evidence sufficient to show she could prove a lack of probable cause at trial, so she could not satisfy an essential element of malicious prosecution.
- It rejected Patrick’s challenge to the consideration of Simmons’s affidavit for summary-judgment purposes and treated the bank’s submissions, together with Patrick’s deposition, as adequate to resolve the probable-cause element as a matter of law.
- Because probable cause defeated the claim, alleged disputes about malice or intent did not prevent summary judgment.

## Legal Principles

- Summary judgment is proper when the record shows no genuine issue of material fact and the mover is entitled to judgment as a matter of law; appellate review is de novo. (La. C.C.P. art. 966)
- When the mover will not bear the burden of proof at trial, it may obtain summary judgment by pointing out an absence of factual support for one or more elements essential to the opponent’s claim; the burden then shifts to the opponent to produce factual support sufficient to meet the burden of proof at trial. (La. C.C.P. art. 966)
- Affidavits used on summary judgment must be made on personal knowledge, set forth facts that would be admissible in evidence, and show the affiant is competent to testify. (La. C.C.P. art. 967)
- The essential elements of malicious prosecution include: (1) commencement or continuance of a criminal proceeding, (2) legal causation by defendant, (3) termination in plaintiff’s favor, (4) absence of probable cause, (5) malice, and (6) damages; failure to prove any element defeats the claim.
- Probable cause turns on whether the defendant had an honest and reasonable belief, based on known facts at the time, that the plaintiff committed the offense; if probable cause exists, the malicious-prosecution claim fails even if the plaintiff disputes malice.

## Conclusion

Because Iberia Bank’s summary-judgment evidence showed that Patrick attempted to cash a check dated the day after her mother’s death and signed in the deceased account holder’s name, and the bank had additional information suggesting irregular activity, the court held probable cause existed as a matter of law; Patrick’s inability to show evidence supporting the required absence-of-probable-cause element required dismissal of her malicious-prosecution claim.


Patrick v. Iberia Bank, 926 So. 2d 632 (2006)